Time Runs Out for Landmarked Clock Tower

The clock tower at 346 Broadway, which a State Court of Appeals ruling says can be closed, gutted, and converted into a private home — despite its legally protected status as an “interior”landmark, which requires public access.

At the March 26 meeting of Community Board 1 (CB1), Lynn Ellsworth, chair of the Tribeca Trust, relayed somber news. “Our lawsuit against Landmarks Preservation Commission (LPC) has lost on appeal,” she explained. “It came down to procedures used by Commission in their judgment calls. The Court basically told us that we have go to the legislature, because they don’t want to deal with it, it’s too messy.”

Ms. Ellsworth was referring to a March decision from the State’s highest judicial panel, the Court of Appeals, that effectively ended a campaign to save the historic clock tower located atop the landmarked building at 346 Broadway, which us undergoing conversion from offices to condominium apartments.

In December, 2017, a coalition of preservation groups, led by Ms. Ellsworth and the Tribeca Trust, scored a major victory in State Supreme Court, when that panel ruled City regulators do not have the authority to waive landmarks protections, either within or on the outside of a legally protected structure.

The structure in question is the 1898 Renaissance Revival buildinglocated at Broadway and Leonard Streets (and also known as 108 Leonard Street), which was designed by the acclaimed architectural firm of McKim, Mead, and White as the headquarters for the New York Life Insurance Company.

It became a City office building in the 1960s, and earned landmark status in 1987. In 2013, the 400,000-square-foot building was sold by the City for $145 million to Miami-based developers Peebles Corporation, which soon enlisted as a partner the Israel-based Elad Group, best known to New Yorkers as the owners (from 2004 through 2012) of the Plaza Hotel. The new owners quickly decided to convert the building into condominium apartments.

Big Ben

On the roof of 346 Broadway is a giant, mechanical clock — the largest of its kind in the United States, and one of few such specimens remaining anywhere. A unique relic from an era when grand timepieces amounted to a civic statement, it is one of only two clocks in the world to feature a double, three-legged gravity escapement; a 14-foot long, two-second pendulum; and a 5000-pound bell. (The other is “Big Ben” in London’s Palace of Westminster Palace.) The building’s 1987 designation as a landmark cited it as a signal achievement of 19th-century American technology.

But the new owners of 346 Broadway decided in 2014 to convert the clock tower to a penthouse triplex. While this plan would preserve the external visual appearance of the clock, making room for living space behind it requires scrapping the gears and shafts that drive the clock’s hands, and replacing them with much more compact electrical motor. This elicited howls or protest from Lower Manhattan preservationists, but also raised eyebrows among those familiar with the law surrounding landmark protections.

The reason for this skeptical view of the plan was that 346 Broadway has two kinds of landmark status: It’s exterior facade it legally protected (as is the case with most structures that are granted this stature), but it is also designated an “interior landmark,” meaning that alterations within the building require approval from City regulators. The building at 346 Broadway is one of only 117 structures anywhere in New York City that have been designated as interior landmarks. A crucial distinction in this context is that the law requires that interior landmarks be accessible to the public, and no such access would be possible once the space behind the clock became a private home.

For this reason, the developers appealed in 2014 to the LPC for a waiver to allow them to proceed with their plan. Preservationists were shocked when that body agreed in May, 2015 to allow the demolition to proceed. The next step was legal action, in which a coalition of plaintiffs — including the Tribeca Trust and the Historic Districts Council — sued the developer and the City, arguing that LPC had no legal authority, under the City’s existing preservation statutes, to grant such an exception.

Both the plan and the LPC’s favorable ruling on it, raised several troubling policy questions. As Jeremy Woodoff, the LPC’s former Deputy Director of Preservation (who signed on as a plaintiff in the coalition suit against LPC) said, “the Commission effectively de-designated the interior landmark which, in order to be a landmark, has by definition to be regularly open to the public. There are rules and procedures for de-designation designed to protect the public interest, and they cannot be circumvented through the Commission’s simpler permit procedures. To do so is unprecedented and would open the door to future permanent closures of public landmark spaces for private benefit.”

A vintage view of 346 Broadway

Mr. Woodoff also observed that under the conversion plan, “the clock itself would be electrified and at least partially dismantled, destroying its historic integrity and significance, and making its remnants forever inaccessible and invisible to the public and at risk of further alteration or damage by the apartment’s occupants.”

In March, 2016, the preservationists won their case in its initial trial. Both the City and the developers quickly filed an appeal before the State Supreme Court. That body ruled the following year, upholding the trial court’s 2016 verdict in favor of the preservationists. A three-judge majority on the five member panel that heard the case called the LPC’s original decision, “irrational” and “based on an error of law.”

This led the City and the developers to continue their litigation, this time before the State’s Court of Appeals. In oral arguments on February 13, attorney Michael Hiller, representing the preservationists, noted that LPC had taken an opposite, contradictory tack when the developers of 346 Broadway wanted to cut off from public access another part of the building’s interior, it’s ornate banking hall. Mr. Hiller noted that, “in voting to approve this proposal, the Commission required the applicant to record a restrictive declaration against the property that provided for public access to the banking hall, and that the main banking hall would not be used for residential purposes.”

The banking hall within 346 Broadway, which the City’s Landmarks Preservation Commission ordered the developer to preserve and maintain public access for, despite claiming that it had no such authority in the case of the clock tower.

Pointing to the LPC’s contention that it had no legal authority to prevent the developer from closing and gutting the clock tower, Mr. Hiller argued that, in the case of the banking hall, “the Landmarks Preservation Commission did exactly what they said they had no power to do.” He added that, “among the purposes of the Landmarks Law is to promote the use of interior landmarks, ‘for the education, pleasure and welfare of the people of the city.'”

Court of Appeals judge Leslie Stein countered that, “if you think about what the purpose of the Landmarks Law ultimately is, what the decision that this court makes will decide, really [is] for whom the Landmarks Law was enacted. If the Landmarks Law was enacted for the purpose of making properties interior designated landmarks, and other properties available to the public for their education, welfare, and pleasure… then the answer is, there must be some minimal level of access. But if too many restrictions are put on people, they won’t buy these properties, and I think the Landmarks Law is very, very clear that it was intended to promote private ownership and maintenance of these landmarks, so that it didn’t rest on the government. I think in the long run, it could disserve this purpose.”

When the Court of Appeals handed down its decision on March 28, judge Michael Garcia wrote for the majority, when he found that, “at bottom, the Landmarks Law invests the LPC with broad discretion…. given the Landmark Law’s diverse statutory purposes, which range from the ‘protection, enhancement and perpetuation’ of landmarks to ‘strengthen[ing] the economy of the city.'” He also concluded that the Commission’s approval of the developer’s plans, “constituted a rational exercise of the LPC’s discretion based on its unique expertise.” Finally, he decided that, “because of this ‘very wide discretion’ we do not ‘have the power to substitute [our] judgment in place of the judgment of the properly delegated administrative officials.” This amounted to an okay from the State’s highest court, affirming the LPC’s original decision to allow the developer’s plan for the clock tower art 346 Broadway to move forward.

In a stinging dissent, judge Jenny Rivera (joined by judge Rowan Wilson) wrote that, “in order to effectuate the Law’s… purposes, the LPC must approve only those changes and alterations that do not imperil the integrity of a designated structure,” adding that, “although the LPC has great latitude to decide whether to approve an alteration to an interior landmark, it cannot approve an alteration that, by its very nature, amounts to a de facto rescission of a landmark designation.”

She also observed that, “transforming an interior landmark into a private residence, such that it is completely closed off from the public, annuls its designation and is inconsistent with the purpose of the Landmarks Preservation Law,” and concluded that, “the Landmarks Preservation Law is not, as Developer would have it, for the benefit of those who can pay a high cost for private access. Nor is it intended to facilitate the desires of those who would rather do away with the public’s cultural assets because they pose an inconvenience to private interests.”

Comments

The single most devastating decision to the cause of preservation in the history of the New York City Landmarks Law and, without a doubt, the most disappointing in my 27+ year career as an attorney. My heart breaks at the notion that a last-of-its-kind, 120-year old tower clock and its surrounding suite — both designated by the Landmark Preservation Commission as an historic interior landmark — will, absent reversal through reargument (the motion for which is still pending), soon be converted into a luxury condo, all so that a developer will be able to receive an additional $20+ Million of profit. The Landmarks Preservation Commission, prior to this instance, had never approved conversion of an interior landmark into a private apartment. Absent reversal, it won’t be the last.